Autistic Student Suspended for Mistaken Hug and Kiss

Brian Ferguson, a 20-year-old autistic student, has been suspended from special-needs classes at Navarro College in Texas for mistakenly hugging a woman he did not know and kissing her on the top of her head, according to the student’s mother, Staci Martin. She said, “And then they labeled it ‘sexual assault’ because of the kissing,” Martin said. “They said a kiss is considered an assault.”

This is an interesting potential case that illustrates how the ever-expanding definition of “sexual assault” on some college campuses apparently reaches well-meaning conduct that is not sexually-motivated at all and does not even involve intimate areas of the body, much less sex. (It may also pit broad college policies designed to comply with the Obama administration’s interpretation of Title IX against broad duties to accommodate disabled students under the Rehabilitation Act and Americans with Disabilities Act).

This sort of application also is a logical argument against broad “affirmative consent” rules that require advance permission for not just sex, but also ordinary touching and kissing, and classify any failure to obtain advance permission as “sexual assault” (even if it was not against the will of the complainant at the time it occurred). “Affirmative consent” activists now want to extend such rules micromanaging commonplace interactions into the nation’s Kindergartens to cover even non-sexual contact. Sexual assault policies and laws should protect people from violence and unwanted intimate invasions, not relatively harmless activities that simply lack advance authorization.

Note that the Obama administration’s interpretation of Title IX is itself invalid in certain respects. Draconian punishments of students can sometimes themselves violate Title IX or other laws. For example, if a college scapegoats an accused male student to appease Obama administration bureaucrats, that is not a legal defense to his lawsuit challenging his discipline, but may actually state a Title IX claim, as Judge Spiegel made clear in Wells v. Xavier University, 7 F. Supp. 3d 746 (S.D. Ohio 2014).

Hans Bader is a senior attorney at the Competitive Enterprise Institute.